Category Archives: morality

What happens if a person is brought up in a way that is more likely to cause them to act violently? Should they be criminally responsible for their actions? That’s a difficult enough question, but what happens if the perpetrator of a crime is a monkey? These questions are raised by the case of Chico the delinquent pet macaque.

Chico had already been in trouble with the law previously. When US Federal agents had visited the home of his owner some years ago, Chico had acted aggressively and threw faeces at the agents (although he was not the subject of their investigation, of course). This probably didn’t help his cause in the eyes of the law.

On the present occasion, he escaped from his home in Spokane and bit three people shortly thereafter. He was then taken into custody and held at a local humane society. Because he had bitten people, there was a chance that he could have infected them with rabies or herpes B, both of which are fatal to humans. The only way of testing for rabies is a post mortem test of brain tissue, and accordingly, it was decided that he should be put down.

One can’t help feeling sorry for poor old Chico. Apparently it’s a very bad idea to keep monkeys as pets, and they commonly become aggressive and violent. The bottom line is that in many cases, they can’t be “domesticated”, but nor can they then readapt to normal primate society either. Further, some monkeys carry diseases which can be transferred to humans. Many macaques carry Herpes B.

Should a primate like Chico have “quasi-human” rights or “primate rights”? Some might argue that we show no qualms about putting down dogs who bite humans, so a monkey is no different. However, monkeys are much closer to humans genetically speaking. Should they be given more of a chance than a dog?

Here it seems that Chico was put down primarily because of the health concerns involved, but it doesn’t seem fair that he has to pay the ultimate price for that: his misbehaviour is a direct consequence of his owner’s behaviour in treating him as a pet. Incidentally, it appears that his owner will be charged with keeping a dangerous animal. She is already awaiting sentencing for fraud proceedings in relation to a false college degrees sold over the Internet.

I can’t help wondering what would happen if a larger primate (such as an orang utan or a chimpanzee) killed a person. Should it be determined if the primate had understanding of its actions if it was proposed to put the animal down? To establish criminal liability, it is required to establish that there was an actus reus (criminal action) and a mens rea (criminal intention). It has been argued that chimpanzees could potentially be more rationalthan human beings (in an experiment involving the economist’s ultimatum game). Do chimpanzees and other great apes have the moral agency required to be prosecuted for a crime? I am sure I have seen a documentary where a grieving chimpanzee mother carried around her dead baby for days, until some other chimps from the group took the baby away. It was actually very distressing to watch. Clearly the mother and the other chimps had a concept of death, and what is more, the mother had a very human reaction to her child’s death.

On the other hand, having a “quasi-trial” for an animal could become farcical. There is a long and dishonourable tradition of animal trials. The most common animals which were the subject of such trials were pigs, bulls, cows or horses, or pests such as rats, mice and weevils. Edward Payson Evans wrote a book called The Criminal Prosecution and Capital Punishment of Animals in 1906, which cited a variety of cases, including the prosecution of a number of moles in the Valle D’Aosta in 824, the charges against a cow by the Parliament of Paris in 1546 and the conviction of a Swiss dog for murder in 1906. It’s well worth reading this article in Cabinet Magazine for more details of the book – I think I need a copy.

Back to Chico: a case such as this does raise serious issues as to how we deal with criminal offences, whether committed by human or primate.

How much should ill-treatment and bad upbringing explain criminal conduct?

If monkeys can become aggressive through a particular kind of upbringing, is the same true of humans?

How genetically close should an animal be to a human being before it is treated like a human before the law? (if at all)

What if it can be shown that a particular kind of animal has some sort of moral understanding akin to human understanding?

What if a human perpetrator has very little moral understanding of the consequences of his or her criminal actions? Does this make them able to be treated like an “animal”? (I would argue not – that’s what universal human rights are all about – but it’s an interesting question)

It’s a pretty sad case all in all. It sounds to me like the US is in dire need of some laws with regard to keeping primates as pets – primates are very like us in some ways, but they are not substitute children, and they do badly in a domesticated environment.

Last night, I watched a rather depressing documentary on SBS called The Anatomy of Evil. It was about people who perpetrate genocide. I’ve been morbidly fascinated with this question for a while now, as I’ve explained in an earlier post. I’ve never quite been able to fathom how people could shoot/gas/blow up an innocent civilian.

This documentary consisted mainly of interviews with former members of the Einsatzgruppen and Serb paramilitaries, each of whom conducted ethnic cleansing of villages by lining up people and shooting them at point blank range. Some interviewees were unrepentant, and said they’d “do it again if it was necessary”. Some still regarded the people whom they had shot as sub-human. A few regretted their actions and felt less than human.

The director, Ove Nyholm, concludes that the trigger which compels ordinary people to behave like this is anxiety and fear of a threat. In such circumstances, people put aside normal feelings and become ruthless. This is a survival mechanism, and can actually be a positive thing. People can survive in terrible circumstances through sheer willpower. But in the scenario where a group of people who live alongside you are identified as the threat, there is a risk that you will become ruthless towards those people and cease to see them as human. Add to that a wartime context where violence and killing is condoned and people are forced to follow orders, and the results can be deadly. And there’s the notion of retaliating for past wrongs. One of the most unpleasant interviewees featured in the documentary cited the fact that his family had been driven from Kosovo by Albanians in the past, and that he felt satisfied and a sense of righteous revenge when killing villagers and burning down their houses. Another interviewee said that he became a member of the paramilitary group after his own parents had been brutally killed.

It occurred to me too that this analysis can also help explain other wars and ethnic and religious conflicts which do not involve genocide as such, but where innocent civilians are killed.

Take, for example, terrorist attacks. The way in which terrorists become galvanised to kill innocent people is by considering wrongs done to their own people, and desiring to take revenge. I recall that during the Israeli incursion into Lebanon, someone forwarded a Powerpoint slide of dead Lebanese civilians, including a young boy. The purpose was obviously to provoke outrage against Israel. If I was a radical Hezbollah supporter, I am sure that such pictures would be used to whip me into a state of righteous indignation and revenge. And I am sure that an Israeli defending the incursion into Lebanon would ask me to consider Israeli civilians injured or killed by Hezbollah rockets, or Hezbollah terrorist bombs. They might also point to the suffering of Jewish people in the past in Europe as a reason as to why Israeli territory should be staunchly defended. Personally, I consider the loss of life on both sides to be tragic. Neither side can be said to be blameless, but by the same token, the natural human propensity for revenge makes the outraged response of each side understandable. This is why I am so reluctant to “take sides” in discussions on the Middle East, although I am a firm believer that the State of Israel has a right to exist in its original boundaries.

Conflict is fuelled by the notion that the other group represents a threat to the way of life or security of the group. Sometimes, as in Israel, Northern Ireland or Cyprus there are settlers and occupying forces. Sometimes there are competing claims to the same piece of land, or the same holy site (as with some mosques which are targeted by Hindu militants in India). Sometimes the particular ethnic group wants to be separate from the rest of the country, as with Basques in Spain, Kurds in Turkey, Iraq and elsewhere and Tamils in Sri Lanka, because they feel that their way of life and culture is not adequately represented by the government of the particular country of which they are a part. Sometimes, the victimised group is a minority who have been made a scapegoat for a nation’s ills (as with Jews and Gypsies in Nazi Germany, who were targeted because they were different).

When terrorist attacks are mounted, there are retaliatory attacks, often by armed forces. So the US felt justified in attacking Afghanistan because its innocent citizens had been killed by a terrorist plot which had been planned from Afghan territory. One can understand this. The perpetrators had been sheltered by the Taliban regime. But the problem with attacking terrorist or guerilla groups with military force is that they tend to blend back into the normal population, so when you attack them, there is a risk of killing and wounding innocent civilians, which further fuels the fires of righteous outrage.

I don’t know what the answer to all this is, I just know that we should be wary of those trying to whip up moral outrage, whatever side they are on. Take the Cronulla riots in Sydney. Those organising the rally whipped up moral outrage against young men of Middle Eastern background who had been harrassing beachgoers. Yes, it’s true, harrassing innocent people at the beach is a bad thing. As a result of the rally/riot, several people “of Middle Eastern appearance” were beaten and attacked. Bashing people who happen to look like they come from the Middle East is also a bad thing. Then young men in Lakemba whipped up moral outrage to fuel a retaliatory attack. Attacking the houses and cars of people in Maroubra is another bad thing. The thing is that it’s all bad, and it’s mostly innocent people on both sides who suffer.

Perhaps it’s just instinctive that the “ruthless” switch is tripped when we feel that our safety, territory or way of life is under threat. Perhaps we need to recognise that it’s all just part of the way we’re hardwired. Of course one is outraged by injustice suffered by one’s family, friends or compatriots. How much worse would it be if someone in your family or friendship group is killed by a particular group? I’m not sure how I would cope in those circumstances. As Nyholm said in the documentary, he had to acknowledge that he had doubt as to how he would behave. I don’t know either. I’ve never known how I would behave if I were in the Milgram experiment, although I hope that I’m ornery enough to disobey orders. I do hope that if my “ruthlessness” switch was tripped, I would be able to recover my reason and morality. As one of the interviewees said, the scary thing is not that man becomes a beast, but how long he remains a beast.

Perhaps we need to consider that old piece of Klingon wisdom: “Revenge is a dish best served cold”. (Seriously, its first recorded use in that form is in Star Trek II: The Wrath of Khan…the things you learn from Wikipedia!) When our moral outrage switch is tripped, perhaps we need to be aware that our “ruthlessness” switch may also be switched on at the same time, and guard against taking out our anger against anyone who is or may be associated with the group who is said to be morally outrageous. It is difficult to look into the heart of human darkness, but I am glad that I had the courage to watch this documentary.

Perhaps I’m old-fashioned, but I’ve never understood the appeal of the Brazilian wax. In fact, I’m a bit disturbed by the thought that there might be guys out there who prefer women to be hairless. Do these guys like to imagine that the woman is very young? Erk.

There is a piece in The Age today about Brazilian waxes for teens and pre-teens. The piece references a site called girl.com.au which touts itself as “Empowering girls worldwide”. The site has a feature on Brazilian waxes. I thought I’d go have a look. I was horrified. It explains the concept as follows:

Removing all hair from the vagina area, the Brazilian Wax although sadistic in nature is surprisingly not as painful as you might think, to some.

My first comment is that this is an appalling sentence. (Yes, I’m a pedant). My second comment is that I have my legs waxed and it hurts! And once my sister persuaded me to have a bikini wax…owch! Not the kind of thing you want sensitive girlish skin to undergo. I think I’ve made the right decision to avoid Brazilian waxes. The piece goes on to describe the process in ways that make it sound like some kind of torture or violation:

Brazilian waxing involves spreading hot wax your buttocks and vagina area. A cloth is patted over the wax, then pulled off. Don’t be alarmed if the waxer throws your legs over your shoulder, or asks you to moon them, this is normal and ensures there are no stray hairs. A tweezer is used for the more delicate areas (red bits).

EEEK! Doesn’t sound very empowering to me. Apparently if I wanted to become a model this would be a “must”, but fortunately, I got over that particular desire at the age of 13.

I think they have changed the most offensive part of the feature since Dubecki wrote her article. Dubecki says that the site says “Nobody really likes hair in their private regions and it has a childlike appeal”, but the site now says, “Nobody really likes hair in their private regions and this removes it.” Nonetheless, it’s still pretty full on. It suggests that “nobody” likes people who have pubic hair and that “everyone” is removing it.

I suppose it’s all about what you’re comfortable with. I can understand wanting to remove leg hair, and if my 15 year old daughter wanted to wax her legs, I’d let her, with parental supervision. However, I don’t think I’d allow it before the age of 14. Also, if my daughter wanted to shave her underarms, I’d let her. It would be hypocritical of me not to let her do these things because I do them myself.

But I draw the line at Brazilian waxing. The skin there is particularly delicate. And that area is private. It is a sexual area, in a way that legs and armpits are not. There’s no reason to undergo Brazilian waxing unless one is (a) wearing very revealing clothing or (b) exposing that area to others. I just don’t think that it’s appropriate for young teens to do either. Furthermore, I don’t want my daughter thinking that there’s something wrong with her when she hits puberty and gets pubic hair. The inference is that an adult body is somehow dirty or wrong, but girlish, thin and smooth is “sexy”. It’s just a continuation of the idea already present in the media that only girls are attractive, and that a womanly body (with curves, breasts, pubic hair) is ugly. I don’t want my daughter to believe that. And I’d encourage her never to undergo the process described above.

As I’ve said before, there are some very confusing messages out there for young girls these days. Girls’ magazines seem to assume young girls will be wearing makeup and revealing clothes before hitting their teens. Let’s not beat around the bush. Makeup, revealing clothing and waxing are all designed to make a woman more sexually attractive to men. Do we really want 8 year olds doing things which are ultimately designed to make them sexually attractive? I don’t. No wonder Jamie Lynn Spears is pregnant at the tender age of 16: to be rather crude, she looks like “gaol bait”. If we sexualise girls at a young age, we shouldn’t be surprised if they then go out and behave in a sexualised manner.

I really don’t want my daughter to go out and explore her sexuality until she’s ready. And I want her to be comfortable with her womanly body when she grows up. Now, I think that’s an idea which is truly empowering.

“Contrary to most people’s images of pirate crews, they were quite large. Based on figures from 37 pirate ships between 1716 and 1726, it appears the average crew had about 80 members … crews of 150-200 were not uncommon…

“Unlike the swash-buckling psychopaths of fiction, historical pirates displayed sophisticated organization and coordination… They successfully cooperated with hundreds of other rogues. Amidst ubiquitous potential for conflict, they rarely fought, stole from, or deceived one another.”

Leeson also observes that pirates considered theft aboard their ships especially heinous, and he quotes an observer who said, “great robbers as they are to all besides, [pirates] are precisely just among themselves”.

Modern law firms invite comparisons with these pirate organisations, with law firms appearing to have improved the business model.

…

Modern lawyer piracy is not constrained by the law either, but for different reasons.

Lawyer/pirates control the wording of the law. They make sure it can’t easily reach out to them.

On top of that they are in charge of decisions to prosecute. Better still, unlike ordinary pirates, lawyers CAN rely on the judicial institutions to help them.

The judiciary is full of “successful” former lawyer pirates, who find it difficult to criticise others for doing what they themselves used to do.

There is a lot of camaraderie and “collegiality” in the legal profession, but perhaps the best devices of the lot are “disciplinary tribunals” actually dominated by current or former lawyer pirates, which contain a smattering of “lay” people to support claims of independence from the profession.

When lawyers are caught committing lawyering crimes, they can be shunted off to friendly tribunals instead of the ordinary criminal courts.

Last month NSW lawyer Leon Nikolaidis was sentenced to two years jail for criminal fraud, having been found guilty by a jury in an ordinary criminal court.

Unusually, this jailing of a lawyer was not for a trust account defalcation. NSW Legal Services Commissioner Steve Mark…said it was one of the few occasions when a solicitor had been convicted of criminal fraud within a legal practice. He said:

“There is a perception that a lawyer acting in a professional capacity attracts conduct charges, but not criminal charges… Even serious misconduct issues almost never lead to criminal prosecutions.”

There is one big exception. As with those old time pirates, thieving off other lawyers is regarded as particularly heinous.

Theft by lawyers from trust accounts is a bit like thieving off other lawyers, since it frequently results in claims against fidelity funds which the other lawyers have to keep topped up from their own pockets.

This fits in precisely with a discussion Stephen and I were having in the comments section of a previous post, wherein we noted that the ethical breach which is seen as particularly heinous by the profession is the trust defalcation. Our theory was in part that such breaches are easy to prosecute, dealing with numbers rather than thorny questions of ethics, and the prophylactic nature of the fiduciary obligation ensures that any defalcation will be a clear breach. But this article provides another explanation for the prevalence of trust defalcations as an ethical breach: essentially, lawyers who defalcate from trust funds steal from other lawyers, and therefore are treated particularly harshly.

Whereas lawyers stealing from clients…well, who is to judge? Other lawyers.

Services are a hard thing to give a monetary value. And the situation gets particularly thorny when one represents a client, and the client loses. Strangely enough, the client doesn’t feel like paying the bill any more, even though the lawyer may have done the best possible job in the circumstances.

I think a lot of the problems with billing arise from six minute billable units, which were the subject of my second post on this blog, so obviously they’ve been a bugbear of mine for a while. I was trying to explain the concept to some non-lawyer acquaintances who were simply agog at the notion. “What, you charge for every six minutes you spend on a file? Doesn’t that rack up awfully quickly?” said the non-lawyers. Well, yes. And that’s the idea. But further to that, one’s promotion within a law firm depends on the number of billable units one racks up.

So six minute units provide an incentive to:

(a) be inefficient;

(b) be a workaholic and work insane hours to get ahead; and/or

(c) lie about how long something took you.

Unfortunately for me, both (a) and (c) are totally against my world-view. And once I had a family, I had no desire to keep on being a workaholic. So I quit being a solicitor.

I’m sure there are a lot of lawyers who are less scrupulous than I with regard to fudging the figures. They figure everyone does it, and if they just massage it up a little bit, who’s going to notice? The satirical book Hell has Harbour Views features lawyers who routinely bill 27 hours a day (even if they’ve stayed up all night, it has to be false, think about it). I couldn’t laugh too hard at this – too close to the bone.

The difficulty is in judging when a bill is too large. Little increases are hard to pick up. Of course, as I noted in my earlier post, the Legal Practice regime in Victoria seeks to ensure solicitors go into an immense deal of detail in their bills. And it requires solicitors to offer an effective invite on the face of the bill for the client to complain or sue. This doesn’t really fix the problem. A poor old client has to get involved in further litigation. Why not try to stop the incentives to overbill by abolishing six minute billable units?

Obviously, there’s a need for something to change. As I said in another very early post, I think legal services are beyond the range of many ordinary people. And this may lead to the high volume of litigants in person in the court system, who believe that they are better off running their own case. In some instances, they may be right: I’ve seen some terrible lawyers out there.

If the legal profession wants respect in the community, it has to look at legal ethics as more than just trust defalcation. Good legal ethics also means charging clients a fair price, and doing a good job. I believe that if we deemphasise billable hours, this would improve morale and efficiency in law firms, and take away the incentive to “fudge the figures”.

A friend sent me this interesting case, Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 250. It concerns both fitness to practice law and plagiarism at university.

In my first year of teaching, I was shocked to come across what appeared to be plagiarism (material which seemed to have been copied verbatim from the Internet). Fortunately, I didn’t have to decide whether it was plagiarism or not, and I could handball it to the people who deal with that kind of thing. I don’t know what happened in the end. But if plagiarism was established, I had never thought about the implications for the student’s admission to practice. This case provides a salutory warning for any law students who have been found to have colluded or plagiarised in the course of university assessment.

For the non-lawyers out there, when lawyers are admitted to practice, they have to tell the Admissions Board about every matter which may suggest they are not fit to practice (ss 1.2.6and 2.3.3, Legal Profession Act 2004 (Vic)). This includes fines for parking and speeding, and public transport fines. And it seems that it also includes being frank about allegations of plagiarism or collusion during a lawyer’s university career.

The case involved two students, OG and GL, who were studying Business and Law at Victoria University. In the first semester of 2005, both students were studying Strategic Marketing and Planning. The first assignment for that subject was a group assignment, but the second assignment was to be completed individually, building on the material in the first assignment. The lecturers of the subject formed the opinion that OG and GL had colluded in preparing the assignment. Each were awarded zero marks for the assignment. Once they had graduated, the two students went on to complete a Leo Cussens course in order to qualify for practice. Each made disclosures about the incident with the Marketing Assignment, but they differed substantially. In his letter to the Board of Examiners, GL said:

I wish to disclose the following to the Board.

In late July 2005, I was accused of colluding with another student on an assignment for the subject of Marketing Planning and Strategy. I spoke to the Topic Co-ordinator and Head Lecturer and stated that I did not collude with the other student. They did not accept my reasoning for why the assignments were similar.

My reasoning for why the assignments were similar was that it was a mere coincidence. The assignment was based on the findings of a group project completed a few weeks earlier, I was in the same group as the other student. The assignment called for developing a marketing strategy based on the product research in our group subject. There were only two possible strategies that could be used.

They advised that I could go the University Board to defend the matter but based on my reasoning, they were of the opinion that our appeal would be rejected. They also said that if I went to the University Board there would be a mark of [sic] my record. If the matter was dealt with by the Topic Co-ordinator and Head Lecturer, they would not put a mark on my record.

I decided to take the penalty of receiving a zero for the assignment and they said that the matter would not be taken further. …

By contrast, OG’s disclosure letter stated as follows:

On or about 26 July 2005 I received a zero grade for an assessment component in a Marketing subject at University for a misunderstanding that occurred. I had a clash in my Law and Marketing subjects and as a result the Strategic Marketing & Management subject coordinator exempted me from attending tutorials.

I undertook an assessment component that was worth 15% of the total assessment for that subject, which was to be conducted as a group task for both the research component and the writing up of the assignment. However, I misunderstood this as a result of my non attendance at the tutorials, and whilst I conducted the research process in a group I mistakenly wrote up the assignment individually.

As a result of my misunderstanding the topic coordinator awarded me a zero mark for that assessment component. I subsequently still, successfully passed the subject.

No record of the event was recorded and at no time was it suggested to be plagiarism or the like. I did not go before the University Board, nor did I fail the subject for my misunderstanding. It was an internal matter with the subject coordinator.

OG was admitted, as the Board of Examiners accepted this admission.

GL was required to attend hearings before the Board of Examiners before he could be admitted, and in the course of this, the allegations against OG came to light. By this time, OG had already been admitted to practice. In the event, GL was not admitted to practice on the basis of a lack of frankness in his admissions to the Board of Examiners.

The question for the Supreme Court of Victoria was then whether OG should be struck off the roll. In the event, the Court concluded that the most likely possibility was that the students had colluded in the preparation of the assignment, and that they had discussed the matter fully. OG had denied that the university had communicated the allegation of collusion to him, but the Court found the university had done so. They further found that OG knew that GL was disclosing the matter to the Board of Examiners. OG’s admission to practice was revoked.

There are a few lessons to be learned for young players from this case. If you’ve had allegations of plagiarism or collusion against you during your university studies, make sure you disclose it. And make sure your disclosure really is full and frank. Don’t compound one misdeed (plagiarism/collusion) with another (failure to be honest about the circumstances). GL would probably have been better off being totally frank about the collusion; it seems that he did not want to “rat on” a mate, and tried to protect OG, and that this in part contributed to his own failure to be admitted.

I read an interesting piece by Gino Dal Pont in the Law Institute Journal a few months back about the requirement that a lawyer be of “good fame and character” ((2007) 81(10) LIJ 76). It outlined the malleable nature of this concept, and showed that the boundaries are always changing. Previously, tax evasion was not a bar to practice, but now it is according to ss 2.4.26 and 2.4.27 of the Legal Profession Act 2004 (Vic). And as the case above indicates, plagiarism and collusion may provide bars to practice, depending on the circumstances: see also Re AJG [2004] QCA 88.

I think the Court made the right decision in regard to OG. In some ways, he was very unlucky that GL was also a law student, and was honest enough to disclose the matter. If GL had written a letter which was similar to OG’s, perhaps they would have gotten away with it. And if GL had not been a law student at all, the matter would never have come to light. It’s a little scary. I don’t like the idea of people like OG practising. Does the disclosure process work? Insofar as it requires good faith on the part of the applicant, there is a problem, highlighted by OG’s case. If a person is dishonest, they will make a dishonest disclosure in an attempt to gain admission. At least by striking this guy off the roll, the Court has given a message that this kind of conduct will not be tolerated.

Another question: does this requirement of good fame and character make people trust lawyers more? Or think that we are ethical? Excuse me while I go into hysterics here. Despite all these requirements, lawyers are distrusted and widely regarded as unethical. (I keep thinking of the line from the Tom Waits song: “Killers, thieves and lawyers, God’s away, God’s away, God’s away on business, business.”) I wonder if it’s a bit like highly religious people. The highly religious proclaim high moral standards for themselves (and sometimes try to impose them on others). It’s quite easy, therefore, to find examples of hypocrisy amongst religious zealots because the standards are so high, and so it is with lawyers too. Perhaps we lawyers would be better off admitting that we are human, and that some of us are not good or ethical people. But then, on the other hand, I think it’s important to keep in mind that as lawyers, we hold a good deal of power and responsibility, and that we purport to uphold and advance the law. And I also think that it’s important to aspire to honesty and to get rid of lawyers who have shown a tendency to be dishonest. What do others think?

I’ve never received a speeding ticket. Indeed, until this year, I was such a goody-two-shoes that I had never even received a parking fine, but the exigencies of working, mothering and studying forced me to take parking risks that I would never have previously taken, and I have received 2 parking fines in 2007. It’s depressing when you get the fine. But I paid each off immediately, so that the slate was wiped clean and I didn’t have to think about it any more. Better to get rid of it immediately.

Hence, I have been following the allegations against former judge Marcus Einfeld with interest. Put shortly, the allegations are that in order to get out of paying a speeding fine, he falsely swore statutory declarations that he was not driving his car at the time. The speeding offence was alleged to have occurred on 8 January 2006. He nominated one Teresa Brennan, a US law professor, as the driver of the car, but she had died in January 2003 in a car accident. Clearly she could not have been driving the car at the time.

I understand that he is an intelligent man and was a very good judge. If the allegations are found to be correct, I cannot quite understand how someone who seems to have done so much good as a judge and as an advocate of human rights law could get into such a mess. The prosecution case is that Mr Einfeld was concerned that he might lose his licence as a result: but surely that’s better than being convicted of perjury. Even if he does not stand trial or is not convicted, his name has been tarnished by the allegations.

I tend to take a dim view of speeding because when I was 15, my younger sister was hit by a car when I was standing just behind her. If the driver had been driving 5km faster, she would have been dead. As it was, her leg was broken and she was concussed. That moment when she flew into the air and landed in a crumpled heap on the road still sticks with me today. I think that’s why I’ve never gotten a speeding fine.

The same law applies to all of us, and if we break the law, we should wear the consequences, no matter who we are. Isn’t that a fundamental principle of the rule of law? Perhaps it’s silly of me, but if the allegations against Mr Einfeld are established, I will feel rather cynical about his professed championship of human rights and the rule of law. To err is human: but on the other hand, you have to practice what you preach, even in small matters like speeding fines.

A mother of IVF twins is suing the doctor who runs the IVF clinic because she says that she only wanted one child implanted, not two, and she has now suffered emotional stress, financial stress and problems in her relationship with her lesbian partner. The mothers are seeking $398,000 to cover the costs of raising one of the girls.

Such cases are known as “wrongful birth” cases. The case of Cattanach v Melchior [2003] HCA 38 set the precedent for these kind of cases. In Cattanach, a couple sued a doctor over a tubal ligation. The wife had told the doctor that she had had her right fallopian tube removed as a teenager, and accordingly, he only clipped her left fallopian tube. This was incorrect. Four years later, she discovered she was pregnant, and gave birth to a son. The parents successfully sued for damages compensation for (1) losses suffered as a result of the pregnancy and birth (2) losses suffered by the husband for a “loss of consortium” and (3) damages representing the costs of raising the child. They were successful (to varying degrees) in all claims. The High Court confirmed that the plaintiffs were entitled to damages for the third head of damages.

By contrast, the English House of Lords rejected a claim of wrongful birth in almost identical circumstances to Cattanach in an earlier case of Macfarlane & Anor v Tayside Health Board (Scotland) [1999] UKHL 50. Personally, I find the words of Lord Millett in that case to be persuasive:

In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages.

The High Court’s approach in Cattanach is to be contrasted with its approach in the wrongful life cases, whereby parents alleged that they would have aborted a child had they known of the child’s disability or potential to suffer a disability (see previous blog post on topic). The High Court found that the plaintiffs were not entitled to damages from the doctors in those cases.

My brothers-in-law are identical twins. I understand that it was a struggle for my mother-in-law when they arrived, particularly as she already had one small child at the time. I must admit that when I had my first scan when I was pregnant, I felt a little nervous. What if I was pregnant with two children? It would be both exciting and scary. It would mean I would have to totally reassess our finances and our way of living. But would I change it? I don’t think so.

As stated in this article in The Age by Carol Nader, there is a tension between the modern day view that parenthood is a choice, and the older view that a child is a blessing. In the past, women could not control their fertility easily. There was little choice as to whether to have children or not. Having children was seen to be a woman’s only role in life. Now we can control our fertility, and intervene in ways previously thought unimaginable to determine whether a foetus is disabled or to determine what gender it is. This gives us more choice and flexibility. It is undeniable that part of the social revolution whereby women can enter the workforce has arisen because women can now control their fertility. I am profoundly glad that I can study and work, and control when I have my next child. I’m not just tied to the kitchen sink, barefoot and pregnant. On the down side, some women have found that they have left it too late to have children, or have experienced severe difficulties as a result. There’s pros and cons to everything.

The result is that we now see parenthood as a choice rather than something that inevitably occurs. And we may feel angry if we can’t control our choice to become a parent in the way that the medical profession told us that we could.

I do not feel comfortable with the case of the reluctant mothers above. I understand that they did not want two children at once, and that they were distressed by the fact that there was an unexpected addition. As I have explained above, I think I would panic if I found out I was having twins. But I can’t help agreeing with Lord Millett. A happy, healthy child is a blessing. In this day and age, a woman is lucky to be able to conceive via IVF. And I also worry about the impact that this case may have on the twins when they are older. They will know that their mothers only wanted one of them, and they may feel rejected. I think that the mothers should not succeed. Sometimes life doesn’t turn out the way we planned where children are concerned. But my own daughter is such a blessing that I can’t quite fathom the distress of these mothers. I think of friends who would love to have children (in both heterosexual and same sex relationships). Surely two isn’t just double trouble, it’s also a double blessing?